1973-0726_WESTPORT - APARTMENT HOME CO._Agreement7�' 7 /,9 5
AGREEMENT REGARDING OFFSITE IMPROVEMENTS
THIS AGREEMENT, made and entered into this�%d day of July
1973 by and between:
CITY OF SAN JUAN CAPISTRANO, a municipal corporation,
hereinafter referred to as "CITY";
and
WESTPORT APARTMENT HOME CO.,
a Limited Partnership
ter referred to as "WESTPORT";
and
GUARDIAN MORTGAGE INVESTORS, a Massachusetts Trust,
hereinafter referred to as "LENDER".
WITNESSETH:
THAT WHEREAS, WESTPORT has submitted to`the,City Council of the City of
San Juan Capistrano a Tract Map for Tract No. 7195 and has requested the City
Council to finally approve said Tract Map and such a: ion has been taken by said
City Council; and
WHEREAS, as a condition to the approval of said Tract Map for Tract
No. 7195 and the authorization for the recording thereof, and the acceptance of
the dedication of the streets, alleys and other improvements in said subdivision,
WESTPORT is required to enter into an Agreement with the CITY to do and perform the
work hereinafter specified and to pay all labor and materials in connection therewith,
as required by Sections 11611 and 11612 of the Business and Professions Code of the
State of California; and
WHEREAS WESTPORT has agreed to furnish or cause to be furnished and pay
for all labor, materials and equipment, and perform or cause to be performed and pay
for all work to make and complete the following improvements inside of Tract No. 7195
to wit: Install and lay all curbs, gutters, construct all streets and excavating,
paving, etc., lay and install all street signs; to lay and install all sewer mains
and lines, including manholes, house connections and structures, and all water mains,
meters, house laterals, and any miscellaneous requirements inside of Tract No. 719S ,
and to install certain offsite improvements consisting of storm drains, sewers, flood
control, drainage and slope easements, and to pay all costs of engineering necessary
in connection therewith, all in accordance with the plans and specifications of the
Engineers of the CITY, said improvements to be completed on or before one (1) year
from date hereof; and
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WHEREAS, in lieu of the posting with the CITY of a surety bond or deposit,
as required by Section 11612 of the Business and Professions Code of the State of
California, WESTPORT desires to deposit with LENDER, cash in lawful money of the United
States, in an amount estimated to be necessary to pay for the cost of all labor,
materials and equipment and the performance of all work for the installation and
completion of said improvements, as a guarantee that WESTPORT will make and complete
said improvements as herein required and pay the cost thereof.
NOW THEREFORE, FOR AND IPJ CONSIDERATION OF THE MUTUAL COVENANTS AND PROM-
ISES OF THE PARTIES HERETO, AND UPON THE EXPRESS TERMS AND CONDITIONS HEREINAFTER SET
FORTH, IT IS AGREED BY AND BETWEEN THEM, EACH FOR THE OTHER, AS FOLLOWS:
FIRST: That in consideration of the final approval of the map of said
Tract No. 7195 and the recording thereof, WESTPORT does hereby agree to deposit
with the LENDER, pursuant to Section 11613 of the Business and Professions Code of
the State of'tralifornia, the sum of $6J,5-OO.00 in lawful money of the United State,
to be held by the LENDER in accordance with said Section 11613 of the Business and
Professions Code.
1. (a) WESTPORT agrees to furnish or cause to be furnished all labor, ma-
terials and equipment and to perform or cause to be performed all work, and to make
the improvements hereinabove specified and described in a good and workmanlike manner,
all in accordance with the plans and specifications of the City Engineer of the CITY
and to pay all costs of such labor, materials and equipment and for the performance of
said work at the time and in the manner as required by the CITY, said improvements to
be completed on or before one (1) year from date hereof.
(b) That the money deposited BY WESTPORT with LENDER to be held as
security for the furnishing of all labor, materials and equipment, and the performance
of all work to make and complete the improvements aforesaid in Tract No. 7195 may
be used from and after the execution of this Agreement to make progress payments to pay
for materials furnished and labor performed for the making, installation and completion
of said improvements as follows:
(c) That progress payments shall be made not more often than twice
monthly, and in the manner here provided.
(d) That all such progress payments shall be made directly by LENDER
to the person, firm or corporation furnishing such materials or performing such labor.
(e) That LENDER shall be provided with an approved inspection to
certify to the quantity of work performed for the purposes of paying for said work,
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the inspection to be made by or under the supervision of R. M. Galloway & Associates,
Inc., Civil Engineers licensed by the State of California, and approved by the City
Engineer; said certification to be submitted with invoices or bills to the City
Engineer.
(f) That no progress payments shall be made until the City Engineer
has reviewed and approved the certification and given written notice to the LENDER.
(g) That no progress payment shall be made for more than ninety (90%)
percent of the value of any installment of work.
(h) That certification of work performed shall not constitute final
acceptance by the CITY.
(i) That no progress payments shall be paid except for materials and
equipment furnished for such improvements or labor performed on the improvements and
no payments shall be made, unless or until itemized statements of such materials
furnished, equipment used, or labor performed has been approved by WESTPORT or its
authorized agent, designated in writing to the LENDER.
(j) That all of the funds deposited with LENDER for payment of labor,
materials, etc., and not paid out in progress payments, as hereinbefore set forth,
shall be held by the LENDER until the City Engineer has certified to one hundred (100%)
percent completion on the project and for a further period of thirty-five (35) days
after the filing of notice of completion of said tract improvements, or in the event
of failure to file a notice of completion, until ninety (90) days after certification
of completion by the CITY.
(8) That the Ci=ty Engineer will be furnished with a copy of the
recorded notice of completion.
(1) That the City Engineer will be furnished with true and conformed
copies of the contract documents for all improvement work performed under this Agreement.
SECOND: That if WESTPORT shall well and truly furnish or cause to be furnished
all labor, materials, and equipment and perform or cause to be performed all work
hereinabove specified to be performed within said period and made said improvements
as herein agreed, then this obligation shall be void upon the delivery to the LENDER
of a statement signed by the City Engineer of the CITY OF SAN JUAN CAPISTRANO,
certifying to the completion of said improvements to the satisfaction of the CITY
and in accordance with the specifications of the City Engineer of the CITY, but, in
the event that WESTPORT shall fail to furnish or cause to be furnished all labor,
materials and equipment and perform or cause to be performed all work required to
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make and complete said improvements as herein specified and to pay therefor, all
within the time and in the manner herein set forth, then and in that event said
LENDER shall, upon demand by the CITY, pay to said CITY said sum deposited with
it, or so much thereof as the City Engineer of the CITY shall certify is required
to make and complete said improvements, or so much thereof as shall remain in said
fund in the event that a portion thereof has been paid out in progress payments,
provided that no payment shall be made by LENDER until ten (10) days after demand
by the CITY.
The LENDER hereby &grees to hold said funds so deposited withiit, in
accordance with all of the terms and conditions herein set forth, and upon failure
of WESTPORT to furnish or cause to be furnished all labor, materials and equipment,
and perform or cause to be performed all work herein required to be furnished and
performed by WESTPORT and to make and install the improvements hereinabove specified,
and upon receipt of a certificate of the City Engineer of the CITY, certifying that
said labor, materials and equipment have not been furnished and said work has not
been performed and said improvements have not been made, installed and completed in
accordance with the plans and specifications of the CITY, as furnished by the City
Engineer and within the time herein required, that said LENDER will pay to the CITY
the amount of money deposited with it by WESTPORT and held as security for the making
of said improvements in said Tract No. 7195 as hereinabove more particularly
set forth in the performance of this Agreement, or so much thereof as may be certified
by the City Engineer of the CITY would be rqquired to make and complete said improve-
ments, or in the event progress payments have been made prior to default hereunder,
then pay to the CITY so much of said funds as shbll remain in the hands of said
LENDER at such time. But, if said WESTPORT shall well and truly furnish or cause
to be furnished all labor, materials and equipment and perform or cause to performed
all services and work necessary to make and complete the improvements in Tract No.
7195 as hereinabove more particularly mentioned and described in accordance
with the specifications of the City Engineer, within the time required, the City
Engineer of the CITY shall deliver to said LENDER a certificate, in writing,
certifying that said improvements have been made and completed as herein required,
and, upon receipt of such certificate, the funds deposited with said LENDER, or so
much thereof as shall remain in its hands, shall be disposed of as directed by
WESTPORT with the consent and approval of the LENDER.
Upon failure of the LENDER to hold and disburse said funds as herein
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provided, or comply with the terms of this Agreement, it shall become liable to the
CITY for all loss or damage suffered by the CITY by reason of the failure of WESTPORT
to make and install improvements in said Tract No. 7195 as herein required, but
not exceeding the amount of the deposit herein required to be made by WESTPORT with
the LENDER.
All charges and fees shall be paid by WESTPORT, and the CITY shall be at
no expense or otherwise obligated under this Agreement.
THIRD: It is hereby understood and agreed that the time for completion
of said improvements in said Tract No. 7195 is one (1) year from and after the
date hereof; subject, however, to delays caused by reason of a suspension ordered by
the City Engineer for a cause not due to an act, default or omission of WESTPORT or
because of any other act of neglect of the CITY of its agents, officers or employees,
without contributory fault or negligence on the part of WESTPORT, its agents, employees
or subcontractors, or if the work should be delayed by fire, storm, flood or other acts
of God, by war, or acts of public enemies, by strikes, by unusual delays, unavoidable
casualties or causes beyond the control and without the fault or negligence of
WESTPORT or for any other reason which, in the opinion of the City Engineer is proper
justification for such delay, the time of completion shall be extended for a length
of time equal to the delay caused by any of the above mentioned causes..
FOURTH: WESTPORT agrees to execute and file a notice of completion promptly
upon the completion of the furnishing of all labor and materials and the making and
completion of said improvements.
FIFTH: WESTPORT shall take out and keep in force until the completion of
the work herein agreed to be done by WESTPORT, at WESTPORT's expense, public liability
and property damage insurance in which CITY shall be named as an additional insured
to protect CITY against any and all liability to the public incident to the use of or
resulting from any accident occurring in, or about the streets, highways and public
places dedicated to the public by Tract No. 7195 , the liability under such
insurance to be not less than One Hundred Thousand Dollars ($100,000.00) for any one
person injured, or Three Hundred Thousand Dollars ($300,000.00) for any one accident,
or Five Thousand Dollars ($5,000.00) property damage.
SIXTH: It is mutually agreed to an understood by all parties hereto that,
wherever herein mention is made of a deposit of funds held by the LENDER, it is meant
that such funds consist of an absolute and irrevocable commitment of money to the
CITY, pursuant to the terms of this Agreement.
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SEVENTH: It is mutually agreed to.and accepted by all parties that con-
current with the execution of this Agreement, WESTPORT shall make an assignment of
all its rights under all contracts which it has entered into with the subcontractors
for performance of the work herein described to the CITY.
Such assignment shall be delivered to and held by the LENDER and, in the
event that for any reason whatsoever, wilful or non -wilful, with or without fault,
WESTPORT shall not complete as herein contemplated, then said assignment shall be
handed to the CITY for its use and benefit in the completion of the herein described
work.
Date: AUGUST 14, 1973
Date: AUGUST 14, 1973
Dated:_____
Dated: %"ge- 03
Dated: ? i0'>3
CITY OF SAN JUAN CAPISTRANO$
By: '"f/ A& (
City Clerk
WESTPORT APARRTIIENT ITOME CO. ,
G>a �JF���t�e�OMEa�I��Pb��S;pINC.
\ eral Partner
By:
By,
-A
GUARDIAN MORTGAGE INVESTORS,
a Massachusetts Trust
The name Guardian Mortgage Investors is the designation of the Trustees
for the time being under a Declaration of Trust, dated March 29, 1966,
as amended. This agreement and every undertaking made pursuant hereto
is executed in the name of and on behalf of the Trustees of Guardian
Mortgage Investors by one of the Trustees of the Trust, duly authorized
by all of the Trustees, in his capacity as such, and not individually,
under the aforesaid Declaration of Trust, and the obligations thereof
shall be understood and expressly stated to be not binding upon any of
the Trustees, shareholders, officers, or agents of the Trust, personally,
but binding only upon the trust estate of Guardian Mortgage Investors.
All persons dealing with Guardian Mortgage Investors must look solely
to the trust property for the enforcement of any claims against Guardian
Mortgage Investors.
r-
lJ
STATE OF )
ss.
COUNTY OF )
LJ
On this day of before me, a
Notary Public in and for the said STATE, personally appeared
known to me to be the and
known to me to be the of the
that executed the
within instrument, known to me to be the persons who executed the within
instrument on behalf of siad and
acknowledged to me that executed
the same.
STATE OF CALIFORNIA
ss.
COUNTY OF ORANGE
On this day
,
personally appeared, Dean Ri
me
Notary Public
Of J'ulY, 1973 , before me,
a Notary Public in and for said State
kBeil, known to me to be the
resident, and Jean "cLachlan,
Secretary of Westport Home Builders, Inc., the corporation that
executed the within instrument on behalf of said corporation, said corporation
being known to me to be one of the partners of Westport - Apartment Fome
Co., the partnership that executed the within instrument, and
acknowledged to me that such corporation executed the same as such partner and
that such partnership executed the same.
WITNESS my hand
OFFICIAL SEAL
.v + JEANNE L. NELSON
�t
'tz NOTARY AU8i1C-CAL7FOR NIA
F Ri,JCIVAl OFFICE IN
.� oltAPlCE COUNTY
a My commission Erpi;es Sept. 16, 1974
1116 England Steel, Huntington Beach, Calit.�92646
STATE OF�J6'dcl
COUNTY OF X 0 cj
and official seal.
SS.
On this 'qday of 1I J ti � , before me,
t e undersigned, a Notary Public in and f the tate, personally appeared
G� � . ( �_, tS K t- X a d — known to me
o be the�Ey,�tC)U C.iC� — President a,- *�-..".�
Sesa-ry respectively, of the corporation that executed the within instrument,
and also known to me to be the persons who executed it on behalf of such corpora-
tion, and acknowledged to me that such corporation executed the same, and further
acknowledged to me that such corporation executed the within instrument pursuant
to its by-laws or a resolution of its Board of Directors,
< ff
(2Notary FLID11C
Notary Public, State of Florida at Large
My commission expires Feb. 28, 1977